Tuesday, March 22, 2005

law

I am disgusted by the Terri Schiavo political spectacle, although I have some empathy for all the family members on the various sides. I will emerge from my disgustedness just long enough to say this: that the Eleventh Circuit ought (if they are going to affirm the District Court's denial of preliminary injunctive relief, which I believe they should under the law) simply say, "We affirm for the reasons stated by the District Court." Anything weirder or more complex than that would simply invite more political yickety-yacking.

3 Comments:

Just curious what others think on this topic. Could the current path of this case in the federal court be blamed on Schindler's attorney? What I mean by that is it appears to me (not an attorney) that Schindler's lawyer assumed that the Act passed by Congress would basically be enough to get the result they wanted with the temporary restraining order. Judge Whittmore's ruling was that since the Schindler's TRO used arguments based on what happened in FL courts, he had to use the results of those rulings in his decision about whether to issue a TRO. Since he found that the arguments were not compelling enough to issue a TRO, could it be that Schindler's lawyer really messed up by not pursuing a different and credible line of argument in the TRO that went outside of what had transpired in FL? I'm not sure what that argument would be. I'm just curious if, from a professional standpoint, Schindler's attorney was too lax after the Congressional intervention. Maybe others think he did the best job possible. I'm not an attorney, so I'm not sure what is possible here.

I can't think of anything that the Schindlers' lawyer could have done differently that would (or, I ought to say, "should," given my beliefs about what the law is) have led to a different outcome.

The Schindler's problem is that the statute only (odd to say "only" about this overreaching statute, but still ...) grants jurisdiction, and does not set out any new governing law or standard of conduct. It just says that they can bring a claim based on the U.S. Constitution or laws. But, as they have now been told by two courts, they have identified no such valid claim.

Though the Congress said "de novo," that means less than might meet the eye. Any legitimate federal claim that they might have would, almost certainly, have to be a claim against Florida governmental officials. But consideration of any such claim would have to take into account what those governmental officials have done -- most particularly, as the 11th Circuit said, you can't decide whether they violated any due process rights except by looking at what process they afforded. In other words, there's no federal law that I know of, or that the Schindlers have identified, that makes "will she ever regain consciousness?" an element of the federal claim.

The Congress could perhaps stretch its "commerce clause" authority and try to enact a substantive law about health care directives, etc. But surely they had no constitutional authority to create a substantive law about one person in particular, so it's good that they didn't purport to do so.

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